Newberry Equipment Co., Inc.

National Labor Relations Board - Board Decisions

Jan 31, 1962

135 N.L.R.B. 747 (N.L.R.B. 1962)

NEWBERRY EQUIPMENT COMPANY, INC. 747
Since I have found that the Respondent by various acts interfered with , restrained,
and coerced its employees in the exercise of the rights guaranteed in the Act and
particularly because of the discriminatory discharges and layoffs , I am persuaded that
the unfair labor practices committed are related to other unfair labor practices pro-
scribed and that the danger of their commission in the future is to be anticipated
from the Respondent 's conduct in the past. Accordingly, in order to make effective
the interdependent guarantees of Section 7 and thus effectuate the policies of the Act,
I will recommend that the Respondent cease and desist from in any manner infringing
upon the rights of employees guaranteed by the Act. May Department Stores d/b/a
Famous-Barr Company v. N.L.R.B., 326 U .S. 376 , 386-392.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the Unions here involved are labor
organizations within the meaning of the Act.
2. By discriminating in regard to the hire and tenure of employment of Kenneth M.
Smith, Royal S. Tidmore, Jr., Rayburn Collins, Melvin Burroughs, James Collins,
Johnnie M. Johnson , Fred Harrell , and Roy Strickland , thereby discouraging mem-
bership in District 50, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (3) of the Act.
3. By granting unlawful assistance and support to Local 372 the Respondent has
violated Section 8 (a)(2) of the Act.
4. By frustrating the Section 7 rights of its employees to self-organization and
collective bargaining , the Respondent has violated Section 8 (a)( I) of the Act.
5. The General Counsel failed to prove that on or about January 16, 1961, Plant
Manager George Aufman threatened the employees that the Respondent would close
the plant or would discharge them if District 50 were successful in its organizational
campaign , or threatened that if that Union won its campaign , there would be a strike
because the Respondent would be unwilling to accept it as bargaining agent for the
employees.
[Recommendations omitted from publication.]
pang , Inc, 210 F. 2d 829 (C.A. 6) ; N L R.B. v Howell Chevrolet Company , 204 F. 2d
79, 86 ( CA. 9). Consequently , I must recommend that the standard remedial provision
for a violation of Section 8(a)(2) be applied . Since this requires that the Respondent
not recognize the unlawfully assisted union unless and until that organization shall have
been duly certified by the Board , I must point out that this further means certified after
a valid election . Under the circumstances present here, and in view of the unlawful
assistance rendered Local 372 , the election of February 3, 1961 , must be held invalid and
the results set aside.
Newberry Equipment Company, Inc. and International Brother-
hood of Boilermakers , Iron Shipbuilders, Blacksmiths , Forgers
and Helpers, AFL-CIO. Case No. 26-CA-1101. January 31,
1962
DECISION AND ORDER
On November 1, 1961, Trial Examiner Thomas F. Maher issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent has engaged in and is engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief, and the General Counsel
filed a motion and a request for permission to reply to Respondent's
exceptions.
135 NLRB No. 81.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report, the exceptions
and the brief, and the General Counsel's motion,' and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner.
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Newberry Equip-
ment Company, Inc., Memphis, Tennessee, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with Inter-
national Brotherhood of Boilermakers, Iron' Shipbuilders, Black-
smiths, Forgers and Helpers, AFL-CIO, as the exclusive representa-
tive of all production and maintenance employees of the Respondent
employed at its West Memphis, Arkansas, plant in the appropriate
unit which includes welders, setup men, layout men, painters, truck-
drivers, stockroom clerk, installation, janitors, sweepers, and all help-
ers and the shipping and receiving clerk, excluding office clerical
employees, salesmen, draftsmen, guards, and all supervisors as defined
in the Act, by (1) refusing to produce, upon request by the afore-
mentioned labor organization, information necessary or relevant for
bargaining, and (2) insisting upon written assurances, with a mone-
tary guarantee, of good conduct on the part of the aforementioned
labor organization's attorney and representatives as a condition of
bargaining.
i The Respondent attached to its exceptions an affidavit , identified as "Exhibit A,"
which had previously been filed with the Regional Director for the Twenty -sixth Region
in support of a charge against the Union in Case No 26-CB-135, filed August 4, 1900
That charge , involving alleged bad conduct on the part of the Union ' s attorney , Sabella,
was withdrawn by the Respondent after investigation by the Regional Director. The
General Counsel has filed a motion with the Board requesting that the affidavit and all
references made thereto in Respondent ' s brief be stricken from Respondent's exceptions.
We find merit in the General Counsel's request and the motion is hereby granted, for it
appears that Respondent was not denied counsel at the hearing but rather chose to be
represented by Mr. Newberry , its president. At the hearing Mr Newberry was offered
the opportunity to cross-examine , and could have cross -examined Attorney Sabella, and
he was apprised of his right to introduce other relevant evidence and to argue orally re-
specting the alleged bad conduct of the Union However , at this late date , we cannot
consider as evidence an affidavit which is not subject to cross-examination Wigmore on
Evidence , 3d edition , § 1384; Iron Castings, Inc., 114 NLRB 739, at footnote 1 The
General Counsel 's request for permission to reply to the Respondent 's exceptions is denied.
NEWBERRY EQUIPMENT COMPANY, INC. 749
(b) In any like or related manner interfering with, restraining, or
coercing their employees in the exercise of their right to self-
organization, to form, join, or assist the aforesaid labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any and
all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively in good faith with Inter-
national Brotherhood of Boilermakers, Iron Shipbuilders, Black-
smiths, Forgers and Helpers, AFL-CIO, as the exclusive representa-
tive of all Respondent's employees in the unit found appropriate and,
if an understanding is reached, embody such understanding in a signed
agreement.
(b) Post at its plant in West Memphis, Arkansas, copies of the
notice attached hereto marked "Appendix." 2 Copies of said notice,
to be furnished by the Regional Director for the Twenty-sixth Region,
shall, after being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to its employees are custom-
arily posted. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for the Twenty-sixth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
' In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL, upon request, make available to International Broth-
erhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers
and Helpers, AFL-CIO, information necessary to prepare for col-
lective bargaining.
WE WILL bargain collectively in good faith, upon request, with
International Brotherhood of Boilermakers, Iron Shipbuilders,
Blacksmiths, Forgers and Helpers, AFL-CIO, as the exclusive
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of all our employees in the appropriate unit with
respect to rates of pay, wages, hours of employment, and all other
conditions of employment, and if an understanding is reached,
embody such understanding in a signed agreement, and WE WILL
NOT require any assurances from the aforementioned labor organi-
zation's attorney or representatives of their future good conduct.
The appropriate unit is:
All production and maintenance employees of the Newberry
Equipment Company, Inc., employed at its West Memphis,
Arkansas, plant, including welders, setup men, layout men,
painters, truckdrivers, stockroom clerks, installation, jani-
tors, sweepers, and all helpers and the shipping and receiving
clerks, excluding office clerical employees, salesmen, drafts-
men, guards, and all supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the right to
self-organization, to form labor organizations, to join or assist
the above-named labor organization, to bargain collectively
through representatives of their own choosing, or to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all
such activities.
All our employees are free to become, remain, or refrain from
becoming or remaining members of any labor organization.
NEWBERRY EQUIPMENT COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 7th Floor Falls Bldg., 22 N. Front St., Memphis, Tenn., Tele-
phone Number Jackson 7-5451, if they have any question concerning
this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed on July 3 , 1961 , by International Brotherhood of Boilermakers,
Iron Shipbuilders , Blacksmiths , Forgers and Helpers, AFL-CIO, hereinafter referred
to as the Union , the Regional Director for the Twenty-sixth Region of the National
Labor Relations Board , herein referred to as the Board , issued a complaint on
August 4, 1961, against Newberry Equipment Company , Inc., Respondent herein,
alleging violations of Section 8(a)(1) and ( 5) of the National Labor Relations
Act, as amended (29 U.S.C., Sec. 151, et seq .), herein called the Act. In its duly
filed answer Respondent , while admitting certain allegations of the complaint,
denied the commission of any unfair labor practices.
'NEWBERRY EQUIPMENT COMPANY, INC. 751
I
Pursuant to notice a hearing was held before me at Memphis, Tennessee, on
September 28, 1961. All parties were represented at the hearing and were afforded
full opportunity to be heard, to introduce relevant evidence,' to present oral argu-
ment , and to file briefs with me. A brief was filed by the General Counsel on
October 25, 1961.
Upon consideration 'of the entire record and the brief of General Counsel and
upon my observation of the witnesses I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Newberry Equipment Company, Inc., the Respondent herein, is a Tennessee cor-
poration with its office and principal place of business in West Memphis, Arkansas,
where it is engaged in the manufacture of truck tanks, storage tanks, and fabricated
steel products. During the course of its operations Respondent annually purchases
and receives products valued in excess of $50,000 directly from points outside the
State of Arkansas, and during the same period sold and shipped products valued in
excess of $50,000 directly to points outside the State of Arkansas. Respondent
concedes and I accordingly find upon these facts that it is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Boilermakers , Iron Shipbuilders , Blacksmiths, Forg-
ers and Helpers , AFL-CIO, the Union herein , is admitted by Respondent to be a
labor organization within Section 2(5) of the Act and I so find.
III. THE ISSUES INVOLVED
1. The legality of an employer 's refusal to produce wage information unless and
until the Union provides him with copies of its constitution and bylaws.
2. The legality of an employer 's demand for written assurances , with monetary
guarantee , of good conduct on the part of union attorney and representatives as a
condition of bargaining.
IV. THE UNFAIR LABOR PRACTICES
A. The Union's representative status
Pursuant to a Decision and Order of the Board, dated January 11, 1961, in Case
No. 26-RM-108 ( not published in NLRB volumes ), an election was directed among
Respondent's employees in the following unit determined by the Board to be appro-
priate for the purposes of collective bargaining:
All production and maintenance employees of the Respondent employed at its
West Memphis, Arkansas, plant including welders, setup men, layout men,
painters, truckdrivers , stock room clerk, installation , janitors , sweepers, and
all helpers and the shipping and receiving clerk , excluding office clerical em-
ployees, salesmen , draftsmen , guards, and all supervisors as defined in the Act
In the election held on January 20, 1961, a majority of Respondent's employees in
the foregoing bargaining unit designated and selected the Union as their representa-
tive for the purpose of collective bargaining with Respondent, and was thereafter
certified as such by the Board's Regional Director on February 1, 1961. The Union's
representative status is not questioned.
B. The Respondent 's refusal to supply information and to meet with the Union
On May 15, 1961, the Union, through its attorney, Anthony J. Sabella, addressed
a request to Respondent for certain information which it deemed essential "for
purposes of intelligently bargaining and representing the employees ." Specifically
1 Respondent was represented by its president, Mr. J M. Newberry . Mr. Newberry was
advised by me of his rights with respect to the retention of legal counsel to represent
Respondent in these proceedings . To this end I suggested at the outset the possibility of
adjourning the hearing for a reasonable period for such a purpose The suggestion was
not acted upon Moreover , upon the termination of the hearing I determined not to close
it but to adjourn it pending receipt of briefs, thus enabling Respondent , if it so desired,
to retain counsel and resume the hearing if it were felt desirable . The hearing was closed
by order dated October 27 , 1961 , without further appearances being noted in Respondent's
behalf.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union requested (1) the names of all employees, together with their respective
dates of employment, classifications, rates of pay, and the recent pay increases; (2)
the list of holidays given employees; (3) the Company's vacation schedule and
policy; (4) description of existing insurance program, including coverage and amount
and mode of premium payment; (5) statement of standards for employment quali-
fications, including physical standards; and (6) a statement' with respect to hours
of work, including policy on overtime and premium pay.
The Union's request was followed by an exchange of correspondence between
J. M. Newberry, Respondent's president, and Attorney Sabella, in which Newberry
questioned, "for the record," Sabella's status as representative of the Union, and
Sabella, in return, explained in detail the client-attorney relationship under which
he operated in his request for information from Respondent in the Union's behalf.
Thereafter on May 26, 1961, Newberry, with particular reference to earlier ne-
gotiations with the Union under a previous Board certification, addressed the follow-
ing letter to Sabella:
Your letter of May 24 in answer to mine of the 22nd has been received and
from your letter it is apparent that you are representing what you call the
Boilermakers Union. 'I believe the name of this union has a little more to it
than Boilermakers, but that is beside the point.
At the last meeting I had with you, as a representative, of the Boilermakers
Union you cursed me out and broke up the meeting. At that time I filed an
unfair labor practice charge against the union for your actions and I stated to
the National Labor Relations Board that I wouldn't meet with you again. So
it will be necessary for you to give me complete written assurances that similar
actions will not occur again in our negotiations with the Boilermakers Union, if
you continue to represent them in our meetings . The other union representa-
tives have not used language such as you have used so when you prepare this
guarantee with a monetary penalty clause , if there should be a violation again
then we can proceed from there. [Emphasis supplied.]
In a further exchange of correspondence that can best be described as a typographic
brawl, Newberry stated that "we will positively require a written promise by the
Union that any of their bargaining representatives will conduct themselves in a
respectable manner during all negotiations and a specific promise from Mr. Sabella
that a repetition of the last outburst which broke up our last negotiation meet-
ing will not occur again." On the next day, June 2, Newberry requested of Sabella
a copy of the Union 's International constitution and the Local's bylaws, a request
which he has since consistently adhered to as a quid pro quo for the tendering of the
information previously requested of him by the Union and described in detail above.
As a rejoinder to a further blast by Sabella, President Newberry, by letter of
June 20, 1961 , repeated his demands for written assurances from Sabella and also
the union representative , stating:
In answer to your letter, wish to state that we positively make it a condition
precedent to our meeting that the union furnish us in writing the positive state-
ment that they will not , nor will any of their representatives engage in cursing
or swearing or other types of base and degrading conduct while in negotiations;
and further we will require a letter from A. J. Sabella, personally promising
that he will not engage in cursing , swearing, or other types of base and degrad-
ing conduct while in negotiations.
As to our furnishing you the information you have requested , we suggest
that we furnish that to you at our first meeting exchanging it with you for the
items we requested that you furnish us in our letter of June 2nd which would
enable us to intelligently bargain.
C. Respon'dent's contentions
Respondent's position is best described in its formal answer to the pertinent allega-
tions of the complaint , excerpts from which follow:
There have been requests by the Union in letter form asking for certain
informations and there have been requests from the Company to the Union
for certain informations . The Company has not furnished the information to
the Union, neither has the Union furnished any informaton to the Company.
However , the Company did suggest , in answer to the Union 's request, that
we exchange the informations requested by both parties at the first meeting
between the Union and the Company. I have had no reply from this request ....
We refused to meet with only one particular individual representative of the
Union until and unless that individual first provides us with written assurances
NEWBERRY EQUIPMENT COMPANY, INC. 753
that he will not engage in cursing or swearing or other types of base or degrad-
ing conduct while in negotiations. This individual is Anthony J. Sabella, the
attorney for the Union. We will meet with any other representatives of the
Union without this written assurance.2 We do refuse to meet with Anthony J.
Sabella until we receive a written assurance that he will not engage in cursing or
swearing or other types of base or degrading conduct while in negotiations.
The reason for our refusing to meet with Anthony J. Sabella until we do have
the written assurances that he will not conduct himself in an ungentlemanly
manner is because of the last meeting we had with this individual is that he
broke up the meeting cursing and swearing and going on to say that he had
other things more important to do... .
At no time has Respondent, by pleading or other writing, or by testimony in
defense of its position, described in any further detail the conduct of Sabella or
other representatives upon which it based its insistence that the written assurances be
given, which it alleged in defense of its refusal to bargain with Sabella or the other
union representatives.
D. Analysis and conclusions
1. The refusal of information
The information sought by the Union to prepare itself for bargaining, as described
in detail above, is the type of material to which a bargaining union has been con-
sistently held entitled .3 Nor do I find anything in the decided cases to suggest that
the Union's right in this respect is a correlative one, depending for its validity upon
the satisfaction of certain conditions, such as Respondent's request for the union
constitution and bylaws here. Indeed, Respondent's counterrequest for such ma-
terials, unaccompanied by any explanation of its need or relevancy, appears to be
nothing more than a tit-for-tat situation that suggests recourse to the sort of triviality
indicative of bad faith.
Essentially Respondent's request, apart from its harassing character, is but an
attempt to impose a condition upon its bargaining obligation. As it has been
demonstrated that the production of necessary information is a mandatory require-
ment, any condition placed upon compliance with such a request achieves the same
effect as an outright refusal to comply, and is equally unlawful.4
2. The demand for written and monetary assurances of good conduct
The further conditions imposed upon the Union by Respondent with respect to
future conduct of Attorney Sabella and the other union representatives is equally
repugnant to the concept of effective collective bargaining. At the outset, however,
it is imperative that the problem be considered in its proper perspective.
To say, as I am prepared to say, that objection to cursing and swearing during
the course of bargaining negotiations is not adequate grounds for refusing to continue
negotiations does not imply that I approve or, if I judge it rightly, that the Board
approves collective bargaining conducted at the level of the proverbial pool hall.
Realistically, it must be recognized that adult workingmen, their supervisors, and
no doubt their bargaining representatives, do bespeak themselves in language most
certainly out of place at a church social. This, unfortunately, is a fact of life as old
as time and has existed in spite of the combined forces of good and morality. And
indeed it is a fact of life that we are constantly obliged to live with.
2 It is to be noted that in the correspondence between Respondent and Sabella , set out
in detail earlier, no distinction was made between iSabella and the union representatives
insofar as the written assurances were concerned, except in Newberry's first letter on
the subject, wherein he appears to have absolved the representatives. In later letters
he included them, however The allegations of the complaint have been framed, therefore,
upon the demands outstanding at the time.
3 Westinghouse Electric Corporation, 129 NLRB 850; Tree Fruits Labor Relations
Committee Inc, 121 NLRB 516,; Pine Industrial Relations Committee, Inc., et al, 118
NLRB 1055, enfd. 263 F. 2d 483 (CA.D.C.).
The legal basis for the Union's right to the information requested here is not to be
confused with the requested information made the subject matter of N L R B V. Truitt
Mfg. Co , 351 U.S. 149. In that case, unlike here, the request was for information in
support of the company's inability to meet wage demands. In the instant case inability
to pay is not in issue and the information is being sought for the sole reason of necessity
for intelligent bargaining.
Compare: N.L.R.B. v. Wooster Division of Borg-Warner Corporation, 356 U.S. 342.
634449-62-vol. 135-49
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To recognize the presence of profanity and vulgarity is not, to be sure, to excuse
their excesses either as a fact of life, or as a situation requiring remedy by the
Board. Thus the Board has consistently held that excesses of profanity and obscenity
justify the discharge of employees who so indulge.5 But it is equally clear from a
study of the Board's holding that the attendant circumstances and the extent of the
language used always determines the justification involved .6 Thus "A line exists
beyond which an employee may not with impunity go, but that line must be drawn
`between cases where employees engaged in concerted activities exceed the bounds
of lawful conduct in "a moment of animal exuberance" (Milkwagon Drivers Union
V. Meadowmoor Dairies, Inc., 3,12 U.S. 287, 293) or in a manner not activated by
improper motives, and those flagrant cases in which the misconduct is so violent or of
such serious character as to render the employee unfit for further service.' " 7
Suffice it to say, therefore, profanity in bulk need not be tolerated.
A fortiori, if excessive profanity or abuse be grounds for the discharge of an
employee it would be stronger grounds for refusing to sit down at the bargaining
table with him where more of the same could be anticipated. Nor would such
excesses be less tolerable if uttered at the bargaining table, not by the employee, but
by his certified representative.
So much having been said on the subject of profanity in labor relations, an analysis
of the instant facts is in order, bearing in mind that it is only the excesses of
profanity that are pertinent to the problem.
During the course of counsel for General Counsel's presentation of his case-in-
chief he anticipated the possible defenses of Respondents by attempting to interrogate
Attorney Sabella as to the conversations which took place during previous bargaining
sessions, and which were considered objectionable by President Newberry. I pre-
vented counsel from pursuing this line of questioning, holding, as I reiterate at this
time, that it was properly rebuttal evidence and not admissible as part of counsel's
case-in-chief. Upon the conclusion of General Counsel's case President Newberry,
representing Respondent, was explicitly instructed, as previously noted (supra, foot-
note 1), as to what procedure he might take in establishing Respondent's defense. I
specifically requested him to present such documentary evidence as he considered
necessary, to call any witnesses whom he wished, and to take the witness stand
himself and make such sworn narrative statement as he wished in his defense or
explanation of his position.8 Newberry's final statement was that:
The answers I made to the charges in this cover my position completely. Those
are the facts as I know and that is what I stand on.
Upon the foregoing, therefore, it is clear that Newberry's initial charges of profanity
stand unexplained.
In the absence of any explanation or defense of Respondent's position beyond its
reliance upon its letters which accuse Sabella of cursing, I certainly cannot draw
any inference that the cursing and swearing referred to was excessive, base, or
degrading, or indeed that it ever occurred.
On the contrary, I must necessarily conclude, in the absence of probative evidence,
that Respondent's accusations were unfounded, and that the related conditions im-
posed upon future bargaining were without substance and constituted but an excuse
to avoid bargaining. As Respondent has thereby manifested its bad faith by refus-
ing to bargain with the certified representative of its employees through the imposi-
tion of conditions upon the fulfillment of its bargaining obligation it has in this
additional respect violated Section 8(a) (5) of the Act .9
In sum, therefore, I conclude and find that by imposing conditions upon the pro-
duction of necessary wage information and by imposing conditions upon meeting
with the representatives of its employees, Respondent has refused to bargain in viola-
5 Midland Broadcasting Company, 93 NLRB 455, 458 ; Precision Fabricators , Inc, 101
NLRB 1537, 1549 ; West Bros ., Inc., 104 NLRB 332, 336
6 Midland Broadcasting Company, supra ; Foote Mineral Company, 112 NLRB 1410,
1418-1419.
7 The Bettcher Manufacturing Corporation , 76 NLRB 526, 527, quoting N L.R.B. v.
Illinois Tool Works, 153 F. 2d 811 , 815 (CA. 7). See also Butcher Boy Refrigerator
Door Company, 127 NLRB 1360 , 1371 , enfd . 290 F. 2d 22 (C.A. 7) ; N L R B. v. Herman
Sausage Company, Inc., 275 F. 2d 229, 233 (C.A. 5).
S In this respect it should be noted that a brief recess was had to enable Newberry to
consider his course of future action with care.
9 M f M Bakeries, Inc., 121 NLRB 1596 , 1601 ; Cosco Products Co., 123 NLRB 766,
769. With particular reference to an employer ' s conditioning bargaining upon the con-
duct of specific union representatives see Deeco , Inc, 127 NLRB 666; and N.L.R.B. v.
Kentucky Utilities Company, 182 F. 2d 810 (C.A. 6).
HEILAND DIV. OF MINNEAPOLIS-HONEYWELL REG. CO. 755
tion of Section 8(a)(5) of the Act and has thereby interfered with, restrained, and
coerced its employees in violation of Section 8(a)(1).
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section IV, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
VI. THE REMEDY
It has been found that the Respondent, in violation of the Act, refused to bargain
with the Union as representative of its employees in an appropriate unit, by the
refusal to produce necessary information, and by the imposition of illegal conditions.
To remedy the refusal to bargain in these respects and to effectuate the policies of
the Act, it will be recommended that Respondent cease and desist therefrom and,
upon request, bargain with the Union as the representative of its employees in the
unit in which the Union was certified as such representative and, if an understanding
is reached, embody such understanding in a signed agreement.
As it is implicit in my recommendation requiring Respondent to cease and desist
from refusing to produce certain information that it so produce it, I find it re-
dundant and unnecessary to affirmatively order Respondent to produce the requested
information.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
2. The Respondent is an employer within the meaning of Section 2(2) of the
Act, and its operations occurred in commerce within the meaning of Section 2(6)
and (7) of the Act.
3. All production and maintenance employees of the Respondent employed at its
West Memphis, Arkansas, plant including welders, setup men, layout men, painters,
truckdrivers, stockroom clerks, installation, janitors, sweepers, and all helpers and
the shipping and receiving clerk, excluding office clerical employees, salesmen, drafts-
men, guards, and all supervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9(b) of
the Act.
4. On and since February 1, 1961, the Union has been and now is the exclusive
representative of the employees in the bargaining unit described above, by virtue of
a certification of a Regional Director of the National Labor Relations Board.
5. By imposing a condition upon the production of information requested by the
Union as necessary for the intelligent preparation for bargaining, and by imposing
a condition upon the Union's attorney and its representatives that they provide verbal
assurances of good conduct during the course of future negotiations, together with
the requirement of a guarantee of performance of such assurances with a monetary
penalty clause , Respondent has thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Heiland Division of Minneapolis -Honeywell Regulator Co. and
International Brotherhood of Electrical Workers, Local 1823,
AFL-CIO. Case No. 27-CA-859 (formerly 30-CA-859). Janu-
ary 31, 1962
DECISION AND ORDER
On March 29,1961, Trial Examiner Eugene K. Kennedy issued his
Intermediate Report in the above-entitled proceeding, finding that the
135 NLRB No. 80.